Citation Nr: 1340581 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 11-22 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a neck injury. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Ozger, Associate Counsel INTRODUCTION The Veteran had honorable active duty service from August 1976 to August 1979 with subsequent reserve service. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2010 rating decision in which the RO denied service connection for residuals of a neck injury. In January 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2011. In October 2012, the Veteran testified during a hearing before a Decision Review Officer (DRO). A transcript of that hearing is of record. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated to January 2013. The other documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. For reasons expressed below, the matter on appeal is being REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further action in this appeal is warranted. At his hearing, the Veteran testified that during service in late 1978 or early 1979, while he was stationed in Germany, he was a passenger in the back seat of a private vehicle, and while they were driving up a mountain, the driver of the vehicle lost control and they "rolled off the side of the mountain and went over the mountain and went down." The Veteran also testified that after the vehicle rolled off, he had dirt and grass in his head and mouth, and that he ended up falling out through the door of the vehicle. Moreover, the Veteran asserted that immediately after the accident, he started having symptoms of his neck condition, such as a "numbing feeling all the time" which was persistent and ongoing. The Veteran added that he treated these symptoms with prescription and over the counter medication to get rid of the pain. The Board notes that only partial Service Treatment Records (STRs) from August 1976 to August 1979 are available in the claims file. Although the Veteran claimed that he started having symptoms of his neck injury immediately after the car accident in service, nothing in the Veteran's available STRs or personnel records identify any kind of a car accident, or a neck injury during this time. Despite the lack of treatment or diagnosis of a neck injury or neck disability during service, the Veteran claimed that he was getting prescription medication from the hospital in Munchweiler, to which he went after the accident. In an April 2007 statement, the Veteran indicated that his in-service injury in Germany should be "in the [Charge of Quarters] CQ Report along with the police report." The claims file indicates that the RO requested from the Veteran, among other things, a copy of the accident report and the CQ report. However, in a September 2010 statement, the Veteran noted that he did not have the accident report or the CQ report. The claims file does not indicate that the RO tried to get a copy of these reports from a source other than the Veteran. (Only a line of duty determination was requested from NPRC in July 2011.) In light of the fact that the police report and the CQ report may substantiate an in-service injury suffered by the Veteran, the Board finds that the duty to assist requires an attempt to obtain these identified records. At the hearing, the Veteran also indicated that he was hospitalized overnight for his injuries at the U.S. Army Hospital in Munchweiler, Germany. Inpatient clinical records are often maintained separately from general STRs and filed according to the hospital where treatment occurred. Accordingly, such records need to be specifically requested. Lastly, if the claimed in-service event is substantiated, then the Veteran should be afforded a VA examination and nexus opinion. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. Undertake appropriate measures to obtain any existing Charge of Quarters report and military or civilian police report associated with the Veteran's claimed in-service motor vehicle accident which purportedly took place in Pirmasens/Salzwoog, Germany in either late 1978 or early 1979 while attached to Charlie Battery, 2nd/56th Air Defense Artillery. If any records cannot be obtained after as many requests as are necessary have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The NPRC should be requested to perform a search for any separately stored in-patient clinical records pertaining to the Veteran's claimed admission and treatment for a neck injury following a motor vehicle accident in either late 1978 or early 1979 at the U.S. Army Hospital in Munchweiler, Germany. If any records cannot be obtained after as many requests as are necessary have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. If, and only if, the Veteran's claimed in-service neck injury or motor vehicle accident is substantiated, arrange for the Veteran to undergo a VA examination by an appropriate examiner. The entire claims file must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify any current disability(ies) affecting the cervical spine. Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is medically related to the alleged injury during the Veteran's period of military service from August 1976 to August 1979, to include residuals of injuries purportedly sustained in a late 1978, early 1979 motor vehicle accident. In rendering the requested opinion, the examiner should specifically consider and discuss all pertinent lay and medical evidence, to include the treatment records and reports of medical history completed by the Veteran during service, all post-service treatment records, and the Veteran's contentions, to include any assertions of continuity of symptoms since service. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid a future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, readjudicate the claim for service connection for residuals of a neck injury in light of all pertinent evidence (to particularly include all that is added to the record since the last adjudication of the claim) and legal authority. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).